### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE November

28, 2001 Se ssion
ROY LANE v. ST ATE OF TENNES SEE
Appeal from the Circuit Court for Cocke County No. 21,315 Ben W. Hooper, II, Judge

No. E2000-00310-CCA-R3-PC May 17, 2002

This appeal by the petitioner, Roy Lane, involves both a delayed appeal from

his first degree murder conviction and an appeal from the denial of post-conviction relief

. In the delayed appeal, the petitioner contends that the Co cke Count y Circuit Court (1) improperly admitted evidence about the petitioner’s prior

bad acts and (2) gave erroneous jury instructions. In the post- convicti on appea l, the petitioner claims that he received the ineffective assistance of trial counsel. As to the petitioner’s delayed appeal, we conclude that the trial court did not err and affirm his conviction for first degree premeditated

murder. As to his post-conviction petition, we affirm the trial court’s finding that the petitioner received the effective a ssistance of counsel. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J OHN E VERE TT W ILLIA MS and A LAN E. G LENN , JJ., joined. Tim S. Moore, Newport, Tennessee, for the appellant, Roy Lane

. Paul G. Summers, Attorney Genera l and Repo

rter; Ma rk A. Fulks , Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Du nn, Ass istant District Attorney General, for the appellee, State of Te nnessee.
OPINION

This case relates to the murder of the petitioner’s ex-wife. On January 18, 1990, a Cocke County Circuit Cou

rt jury co nvicted t

he petiti oner of

murdering the victim, and the trial court sentenced him to life imprisonment. This court upheld the convicti on on dire ct appea l. See State
v. Roy G. Lane , No. 03C01-9109-CR-299, Cocke County (Tenn. Crim. App. Apr. 10, 1992). The petitioner filed a petition for post-conviction relief on Septembe

r 10, 1992 , allegin g various issues, including that the trial court improperly instructed the jury and that he rece ived the ineffective assistance of

counsel. The trial court dismissed the petition without holding an evidentiary hearing. On appeal, this court affirmed in part the trial court’s dismissal of the petition but remanded the case-2-

withinstructions that the trial court determine whether the petitioner was entitled to a delayed appeal and whether the petitioner received the ineff ective assistance of counsel. See Roy Lane v. State , No. 03C01-940 3-CR -00089 , Cocke County (Tenn. Crim. App. Jan. 27, 1995). After an evidentiary hearing, the trial court granted the petitione r a del ayed appeal. However, the cour t found that the petitioner received the effective assistanc e of counsel and denied his petition for pos t-conviction relief.

This long and c omplicate d history h as resul ted in the present delayed appeal and appeal from the trial court’s denial of post-conviction relief. In Gibson v. St ate , 7 S.W.3d 47, 49 (Tenn . Crim. App. 1998), this court held that a “petition for post-conviction r elief, compl aining of the original conviction and s entence, may not be maintained while a direct appeal of the same c onviction and sentence is being prosecuted.” See also Laney v. State , 826 S.W.2 d 117, 118 (Tenn. 199 2). Thus, when a post-conviction court is faced with a petitioner who seeks “post-c onviction relief both in the form of a new trial and a delayed appeal, . . . the better procedure is for the trial court to gra nt the delayed appeal, when wa

rrante d, and dism

iss the co llatera

l attack u pon the co nvicti on witho ut prejudice.” Gibson , 7 S.W.3d a t 50. While

we rec ognize th at Gibson states that a direct appeal and
a post-conviction appeal cannot be maintained at the same time, given the confusing background of the petitione

r’s previous appe als in this m atter, w e believ e that it is necessa ry to addr ess b oth the petitione r’s dela yed appe al and pos t-convic tion issues

. At the evide ntiary he aring, the petiti oner’s t rial atto rney tes tified tha

t the petit ioner’s case was difficul

t to defe nd beca use seve ral witne sses had s een the p etitioner shoot th e victim and the petitioner had confessed to police soon after the murder. H e sai d that he tried t o get the j ury to convict the petitioner of a lesser inc luded offense of first degree murder and that he also used a diminished capacity defense. He said he deve loped these defenses through the petiti oner, who testified at trial. He said the petitioner wanted to testify because the petitioner felt the jury nee ded to hear ab out his relationship with the victim. He said a clinical psychologist also testified about the petitioner’s diminished capacity and the petitioner’s love/hate relationship with the victim.

The attorney testified that he was aware at trial that the petitioner had stabbed the victim on Christmas Day in 198 8 and that the victim

had filed a warrant against the petitioner for the sta bbing. He said that he a

ls o knew that sometime after the stabbing, the petitioner’s brother had wr itten a threatening letter

for the petitioner and had delivered the letter to the victim. He said that after the petitioner was convicted, he visited the petitioner in jail and that the petiti oner told

him there was
no need to appeal the case. He said that one or two days later, he took a waiver of appeal form to the jail for the petitioner to sign, but the petitioner had been sent to the penitentiary. He said he “just forgot about it from there on.”

On cross-examination, the attorney testified that he became lice nsed to practice law in 1975. He said that he had tried about three murder case s before he tried the petitioner’s case. He said that he interviewed some

of the ey ewitness es t o the vict im ’s murder over the telephone and that he visited the crime scene. He acknowledge d that he wanted evidence of the aggravated assault charge to be admitted at tri al beca use the victim had had the warrant dismissed and he thought that fact-3-

would benefit the petitioner’s case. He said that the petitioner had taken alcohol and cocaine before the murder and that he was concerned a bout the petitioner’s mental capacity at the time of the crime. He said that although the petitioner had a below average intelligence q uotient (I.Q.), he did not discourage the petitioner from testifying. He said that the petitioner wanted to testify and that he went over the risks of testifying with the petitioner.

The petitioner testified that after he was convicte d, his tria l attorne y came to the jail to talk to him about appealing his case. He said that he told his attorney that he had not made up his mind about whether to appea l. He said that his attorney told him that he would come back in two or three days but that his attorney never returned. He said that he stayed in jail for fourteen days before he was sent to the penitentiary.

The post-con

viction c ourt held

that the p etitioner

was e ntitled to a dela

yed appe al as to whether the trial court impr

operly admitted evidence about the aggravated assault wa rrant and the threatening letter. As to the ineffective assistance of counsel claim, the post-conviction court held that the petitioner’s trial attorney did a “very, very t horo ugh job” of defending the petitioner. It determinedthat his attorney developed a theory of defense but that the jury “didn’t buy it and the evidence was such

that they really c ouldn’t ha

ve bought

it.” The t

rial cou rt also sta ted th at t he petitioner could not show that he was prejudiced by his trial attorney’s errors because the evidence against the petitioner was so overwhelming that the outcome of the trial would have been the same.

In his delayed appeal, the petitioner claims that the trial court erred in admitting into evidence (1) testimony by the victim’s mother that the victim had filed an aggrava ted assa ult warr ant agai nst the petitioner several months before the murder, and (2) a letter that the petitioner’ s brother h ad written for the p etitioner

and deliv ered to t

he victim. In his app eal for post-con vic tion relief, the petition erc laims that he was denied the effective assistance of trial counsel. Although the petitioner’s brief also contends that at his trial the court ga ve erro neous jur

y instruc tions as to premeditation, malice, and reasona ble doubt, we note

that these issues were addressed and resolve d against the petitioner in Roy Lane v. State , No. 03C01 -9403-CR- 00089, Coc ke County

(Tenn. Cr im. App. Jan. 27, 1995). This court’s rulings are now the law of the ca se.
I. PRIOR BA D ACTS

The petitioner contends that the tr ial cour t erred in allowin g into evidence (1) testimony by the victim’s mother that several months before the petitioner murdered the victim, the victim filed
a warrant against the petitioner and (2) a threa tening letter th at the pe

titioner’ s brother

wrote for the petitioner and delivered to the victim. He contends that ev id ence of these prior bad acts was inadmissib le under Tenn. R. Evid. 404(b) because it was unduly prejudicial. In additio n, he cla ims that the evidence was inadmissible hearsay. We be lieve that the evidence was admissible.

Before trial, the petitioner filed a motion in limine to exclude evidence of the ag gravated assault warran t on the ba sis that the

evidenc e was pr

ejudicia l. However, during a pretrial hearing, the defense stated

that its expert was going to testify about the warrant. The trial court, therefor e,-4-

determinedthat evidence of the warran t was admis sible. Dur

ing the he aring, th

e petitioner also askedthat evidence of the threatening letter be exc luded. However, the trialcourt held that the letter
was admissible stating, “It’s material, it’s relevant. Cogent. On point. Goes straight to the burden of proof on the state.”

At trial, the victim’s mother testified that several months before the petitioner murdered the victim, the

petitione r stabbe d the vict

im in the abdomen and the victim filed a warrant against the petitioner. The victim’s mother also testified that somet ime aft er the stabbing incident, the petitioner’s brother delivered a letter from the petitioner to the victim. The defense again objected to any evidence about the letter, arguing that the letter wa s double hearsay because the petitioner’s brother had written it. However, the trial court found that the letter was a dmissible under the party admission exception to the hearsay rule and overrule d the objection. See Tenn. R. Evid. 803(1.2). The victim’s mother re ad the le tter to the jury. In the letter, the petitioner told the victim to drop the charges against him and stated, “If I have to build any time God will number your days.” Initially , we note

that the p etitioner ’s tria

l attorney s tated during the pretrial evidentiary hearing that

his own expert was going to testify about the aggrava ted assa ult warr ant. We a lso note that when evidence of the warrant wa s first introduced by the prosecution through the testimony of the victim’s mother, the p etitioner did not object. We conclude that there is no basis for the petitioner’s claim that the trial court erred by admitting the evidence.

As to the pet

itioner’ s claim tha

t the thre atening l etter sho uldhave been

excluded as a prior bad act, we conclude that the letter was admissible. Rule 404(b), Te nn. R. Evid, prohibits the introduction of evidence of other crimes or ac ts, except when the evidenc e of othe

r acts is relevant to a litigated issue, such as identity, intent, or motive, and its probative value is not outweighed by the danger of unfair pr ejudice. In this case, we believe the letter wa s admissible to show the petitioner’s intentto harmthe victim. See State v. Tu rnbill , 640 S.W.2d 40, 47 (Tenn. Crim. App. 1982) (providing that the “prior relations between the victim and the appellant were r elevant matters for the jury’s consideration on the question of the appellant’s intent”). We a lso believe t ha t the probative value of the evidence was not outweighed by the dange r of unfair prejudice. See Tenn. R. Evid. 404(b)(3).

As to the petitioner’s claim that the trial court erred by admitting evidence of the threatening letter because it was double hearsay, we believe, again, that the letter was admissible. First, the letter
was not double hearsay because the petitioner could not rea d or write and had his brother write the letter for him. Thus, the letter

was his own statement by adoption. As for the letter being hearsay and, therefore, inadmissible under Tenn. R. Evid. 801(c), we conc lude that the lette r was ad missible under the party admission exception to the hearsay ru le. See Tenn. R. Evid. 803(1.2)(A). In addition, we believe t

he lette r was admissible under a second hearsay e xception to show the petitioner’s motive and mental state. See Tenn. R. Evid. 803(3). Thus, t he petitioner is not entitled to relief.-5- II. INEFFEC TIVE ASSISTAN CE OF COUN SEL

Next , the petitioner’s brief claims that he received the inef fective assistance of cou nse l because his trial attorney (1) allowed evidence of the aggravated assault warrant to be introduced at trial; (2) introduced the petitioner’s cocaine use into evidenc e; (3) en couraged the petitioner to testify despite the petitioner’s having an I.Q. of sixty-t hree ; and (4) did not object to the admissibility of the warrant or threatening le tter on the grounds that they were hearsay. The sta te argues that the petitioner failed to demonstrate that his trial counsel’s performanc e was defi cient or that he was prejudiced

by the def

iciency . We beli eve that the petiti oner hasfailed to demonstr

ate th at he is entitled to relief.

In order for a petitioner to succeed on a post-conviction claim, the petitioner must show the allegations set forth in h is petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). A trial court’s findings of fact in a post-conviction hearing are conclusive on appeal unless the evide

nce in the record prepond erates against those findings. See Butler v. St ate , 789 S.W.2d 898, 899 (Tenn. 1990). Post-conviction relief may only be given if a conviction or sentence is void or voi dable

because of a violation of a constitutionalright. Tenn. Code Ann. § 40-30-203.

Under the Sixth Amendmen

t, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to s how t hat (1) counsel’s performance wa s deficient, and (2) the deficiency was prejudicial in terms of rendering a reasonable proba bility that the result of the trial was unreliable or the proceedings fundamenta lly unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 20 64 (1984) ; see Lockhar t v. Fretwe

ll , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied to the right to c ounsel under article I, section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxt e r v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that attorneys should be held to the general standard of whether the services rende red were within the range of competence demanded of attorn eys in crimina l cases. Further, the court stated that the range of compe

tence w as to be me asured b y the dutie s and crite ri a set forth in Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973) . Also, in r eviewing counsel’ s conduc t, a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. C t. at 2065; see Hellardv. State , 629 S.W.2d 4, 9 (Tenn. 1982).

In this case, the petitioner has failed to meet his burden of showing t hat the e vid ence prepo n derates against the post-conviction court’s finding that he received the ef fective assistance of counsel. Although the petitioner claims that he received the ineffective assistanc e of co unsel because his trial a ttorney a llowed ev idence o f the agg

ravate d assault

warran t to be admitted at

trial, introduced evidence of the petitioner’s cocaine use, and encouraged him to testif

y, we bel ieve the se issues go to the defense’s trial strategy. As this court has previously stated, we do not use the benefit-6-

of hindsight to second-guess trial strategy by counsel and criticize trial counsel’s tactical decision s. Hellardv. State , 629 S.W.2 d 4, 9 (Te nn. 1982) . In any e

vent, even if the petitioner’s attorney rendered deficient performance, in light of the overwhelming evidence against the petitioner, he has failedto demonstrate prejudice. As to the petitioner’s claim tha t his trial attorney was ineffective for failing to object to the admissibility of the warrant and letter on hearsay gro unds , we find no basis for these claims. As just discussed, defense co unsel’s strategy was to use evidence of the warrant to benefit the petitioner’s case. Furthermore, th e record reflects that the petitioner’s trial attorney did object

to the admissibility of

the threatening letter on the basis that it was hearsay. We conclude that the trial court did not err in finding that the petitioner received the effective assistance of counse l.

Based upon the foregoing and the record as a whole, w e affirm the judgment of the t ria l court.

__________________________________ JOSEPH M. TIPTON, JUDGE